Even after weeks of quarantining and social distancing, we continue to read about alarmingly high statistics related to Covid-19 illnesses, hospitalizations and deaths. Regardless of which side of the political spectrum you are on, we can all appreciate the double edge sword of getting back to our normal way of living and returning to our jobs versus the risks of further spread and outbreaks. Sure, going back to work and getting a paycheck is the goal in theory, there are likely many of you who are scared in practice. Will I be safe at work? What precautions will my employer take to minimize risk? Will I be subject to having my temperature taken every day? Will I have increased exposure to the virus on my commute? I managed to avoid contracting the virus all this time and I am now fearful, I will get it by being around others at my workplace? These are all legitimate concerns. But now consider all of the above concerns if you are someone who is already disabled, someone who has an autoimmune disease, someone who is pregnant, someone who is older, someone who has an anxiety disorder, someone who is battling cancer. What rights and protections do these compromised employees have when told they need to report to the office on Monday AM? And how to do we all address their important needs?
WHAT IF I AM HEALTHY, BUT JUST SCARED?
The Americans with Disabilities Act (“ADA”) prevents employers from discriminating against employees with disabilities and continues to apply during the COVID-19 pandemic. The tricky part about establishing a case of disability discrimination is that the employee must be able to show that they were able to perform the essential functions of their jobs with or without reasonable accommodations. In other words, just because you have a disability, does not mean you are automatically guaranteed full protection from an adverse employment action as you still must be able to perform your essential job duties with reasonable accommodations made by your employer.
If you do not have any pre-existing disability, as defined by the ADA, and are simply scared to return to work or refuse to return to work, you can and might be terminated. After all, how can you perform your job functions if you are not willing or able to work? However, if you can demonstrate that you have developed an anxiety disorder related to COVID-19, you should pursue a reasonable accommodation request with your employer. For example, perhaps you have a compromised family member living at home, or perhaps you were already someone who dealt with anxiety and now find that your anxiety has increased because of COVID -19, or perhaps you have some other emotional or psychological issue that renders you less equipped to manage the stress and fears associated with this pandemic. In these situations, it may be the case that you now have a severe anxiety disorder, a disability which would entitle you to reasonable accommodations from your employer such as being afforded the opportunity to work from home, or to work in an area of the office that is partitioned or secluded from others, or to work on off hours when the office is less crowded. The accommodation requested must be reasonable and must not present any undue financial harm or obstacles to the employer.
Each employee’s situation will need to be evaluated on a case by case basis. If you are able to perform the essential functions of your job from home and if the employer will not suffer any undue hardship from your working from home (or any other accommodation requested), you might be able to reap the benefit of a “disability” protection under the ADA. Thus, if you are physically well, but are simply scared to return to work, there may be other factors at play that will entitle you to seek reasonable accommodations from your employer. Our employment attorneys will be able to help you navigate this, either in front of or behind the scenes.
IF I DO RETURN TO WORK, WHAT CAN I EXPECT?
While the ADA and state antidiscrimination laws continue to apply during the COVID-19 pandemic, these laws do not interfere with or prevent employers from following the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19. In other words, there will be a great deal of “gray area” regarding what your employer can and cannot do related to COVID-19, but here is some of what you may expect to find upon your return to work.
According to the recent guidelines, employers may screen employees (take temperature) who enter the workplace, and should rely on the CDC for guidance on symptoms associated with the disease. Employers may also administer COVID-19 tests to detect the presence of the virus before permitting employees to enter the workplace, as long as the testing is job-related and consistent with business necessity i.e. health care workers. If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the medical information is stored in a manner that maintains confidentiality and is apart from their personnel file, in accordance with the ADA. Despite the requirement of confidentiality, the employer may and should inform the work population if there has been a recent possible exposure or diagnosis and should require that employee to leave the workplace until they are symptom free. Lastly, an employer may require employees to wear protective gear such as masks and gloves and enforce infection control practices such as hand washing and social distancing protocols.
WHAT IF I AM SCARED TO RETURN TO WORK BECAUSE I AM DISABLED, COMPROMISED OR OTHERWISE AT HIGHER RISK?
The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, such a condition would fit the scenario of someone with a disability, as defined by the ADA, requesting a reasonable accommodation either to work from home or for additional safety precautions or adjustments at work. Apart from the specific medical conditions set forth by the CDC, there might be additional ones that constitute a disability as defined by the ADA and which therefore would entitle an employee to similar protection. Accommodations for those who request reduced contact with others due to a disability may include working from home as well as changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per the CDC guidelines or other accommodations that reduce chances of exposure. In addition, if you are disabled or otherwise compromised or at risk, other accommodations considered might be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
What protections are provided to employees who are not CDC identified or ADA disabled, but may feel they are otherwise compromised because they are pregnant or older. While pregnancy and age are not “disabilities” and do not fall under the ADA (however, in some states like Connecticut pregnancy is considered a disability), employers must still handle such COVID-19 related matters pursuant to the protections afforded under the discrimination laws, such as Title VII. Thus, while an employer may not be legally required to accommodate a pregnant employee related to COVID-19 (or otherwise), an employer may not lay off, furlough or terminate a pregnant employee solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms or that they should be monitored. The same holds true for employees over the age of 40 or for employees who come from a national origin with a higher rate of COVID-19 cases.
In addition, while a pregnant or older employee may not enjoy the protections of the ADA requirement to reasonably accommodate, there is nothing to prevent that employee from discussing this with the employer and requesting to work from home where it is safer. Further, if the employer is providing accommodations such as working from home or more flexible job hours to their more “desirable” employees on the basis of their younger age or their not being pregnant, that might constitute discrimination and should be addressed.
Lastly, while pregnant or older employees who are at higher risk might not fit under the ADA, all employers are governed by the CDC and OSHA. Employers need to be OSHA compliant always and now more than ever. So, if you believe that your employer is placing you at a greater risk, you may put them on notice of such and demand that they follow the workplace safety guidelines and laws. Most importantly, if you complain about any violations to these laws, it is unlawful for your employer to retaliate against you in any way for doing so. If you believe that is happening to you or might happen to you, we advise you call our employment lawyers immediately.
If you would like more information about this article, please contact Carey & Associates, P.C. and speak to one of our Employment Attorneys. Please call 203-255-4150 or email to email@example.com.